This petitioner has been convicted by the Magistrate under Sec. 109/112 of the Indian Railways Act and sentenced1 to pay a fine of Rs. 25/- in default three days simple imprisonment. He was charged under Section 121 of the Indian Railways Act and Section 323 of the Indian Penal Code but the magistrate acquitted him of these two charges. On appeal the Assistant Sessions Judge has affirmed the conviction and sentence under Ss. 109 and 112 of the Indian Railways Act. (2) The case for the prosecution is that the com­plainant Sri Dwijendranath Deka is the head ticket collec­tor at Amingaon Railway Station. On the 2nd July 1951 he was on duty. He found that some passengers were occupying the third class compartment which was reserved for some other passengers and asked the occupants to vacate the compartment. The occupants vacated the compartment. Then the head ticket collector found that the accused with 3 or 4 others were attempting to set into that reserved compartment. His companions on the request of the head ticket collector left the compartment but the accused forced his entry into the compartment. On. demand the accused was unable to produce any ticket or pass. The complainant then protested and asked him not to occupy the compartment without ticket or pass. The accused on this assaulted the head ticket collector and the matter was reported to the Assistant Station Master and to the police. The accused was subsequently arrested from another compartment and he produced a pass which had expired on the 30th June, 1961. On the completion of investigation the accused was put up on trial. At first he was charged under Sees. 109 and 121 of the Indian Railways Act and Sec. 323, Indian; Penal Code. After the evidence was recorded on the 31st July, 1962 the Magistrate by his order added the charge under Sec. 112 of the Indian Railways Act. On that the state­ment of the accused was further recorded and he made, a statement that he had a railway 1st class pass which, was in his suit case in the compartment and could not be pro­duced at the time of the alleged occurrence. Thereafter he filed a pass which was valid for a period from 2nd July 1961 to 10th July, 1961. Thereafter he filed a pass which was valid for a period from 2nd July 1961 to 10th July, 1961. The Magistrate, however, acquitted the petitioner of the charges under Sec. 121, Indian Railways Act and Sec. 323, Indian Penal Code on the finding that the assault alleged by the prosecution is not established beyond doubt. But he convicted him under Sec. 109/112, Indian Railways Act. (3) Section 109 of the Indian Railways Act reads as follows "109 (1) If a passenger, having entered a compart­ment which is reserved by a railway administration for the use of another passenger, or which already contains the maximum number of passengers exhibited therein or thereon under Sec. 63, or having authorized by occupied a berth or seat reserved by a railway administration far the use of another passenger, refuses to leave it when required to do so by any railway servant, he may be removed from the compartment or the berth or seat, as the case may be, by any railway servant authorised by the railway administration in this behalf or by any other person whom such railway servant may call to his aid and he shall also be punishable with fine which may extend to twenty rupees. (2) *****************" I have quoted above only the relevant portion of the section. The prosecution case is that the compartment was a reserved third class compartment and the accused on being asked to leave the compartment refused to leave it. Thus he was guilty under Sec. 109 of the Indian Railways Act. The Magistrate found that the prose­cution has failed to prove that the compartment was a reserved compartment. But he held that as the peti­tioner had obstructed the complainant in the discharge of his duties, he was guilty under Sec. 109. Before a person can be convicted under Sec. 109 it is essential that the compartment which he refuses to leave is one which, must be a reserved one. The appellate court, however, has come to a finding that the compartment is proved, to be a reserved compartment, The prosecution have not pro­duced any document to show that the compartment was reserved. But the contention' of the State counsel, in effect is that it can be proved by oral evidence also and if the appellate court which is a court of fact has. But the contention' of the State counsel, in effect is that it can be proved by oral evidence also and if the appellate court which is a court of fact has. come to the finding on oral evidence that the compartment, was reserved, this court in revision will not upset that, finding. Apart from the fact that the Railway has not produced the documentary evidence, the statement of the complain­ant is to the effect that the accused along with a. number of people was attempting to enter into the compartment He then made a forcible entry when he was asked, to leave it. He immediately jumped out of the compartment and assaulted the complainant. He ran away and was on search found and arrested in another compartment. The real complaint made by the complainant was that when he was on duty the accused assaulted him. He was never said to have travelled in that compartment or continued to be in that compartment forcibly or otherwise. He jumped out of the compartment as he was asked to leave it. Under these circumstances it is difficult to hold that he refused to leave the compartment which was reserved for other passengers. (4) The other ingredient necessary for Section 109, Indian Railways Act is not also established in the case. As I have pointed out, the complainant's main grievance was that he was assaulted and the accused behaved very rudely towards him. It is not established, to my mind, that he refused to leave the compartment when required to do so by a railway servant. In fact the alterca­tion as disclosed in the evidence of the complainant, ensued when the accused was attempting according to the complainant to enter into the compartment and he was asked toy the complainant not to do so. Whatever other offence the accused may have been charged with, so far as S. 109, Indian Railways Act is concerned, on the admitted statement of the complainant, the ease is not made out. Neither the prosecution has succeeded definitely to establish that the compartment was reserved for other persons error has the prosecution succeeded in proving that the ac­cused refused to leave the compartment when required to do so. Neither the prosecution has succeeded definitely to establish that the compartment was reserved for other persons error has the prosecution succeeded in proving that the ac­cused refused to leave the compartment when required to do so. (5) It was then contended by the Senior Government Advocate that Sec. 106 illustration (b) of the Indian Evi­dence Act is attracted in this above and the burden is on the accused to prove the fact that he had no intention to defraud the Railway. As I have already said, the accused has been convicted under Sec. 112, Railways Act which says that if a person with in­tent to defraud a railway administration enters or remains in any carriage on a railway in contraven­tion of Sec. 68, he will be liable under Sec. 112. Section G8 requires that everyone should travel with a ticket or a pass. Mere travelling without pass or ticket will not attract Sec. 112, unless it can be in­ferred from the circumstances that any person tra­velled in contravention of Sec. OS with intent to defraud the Railway administration. The intention. of the accused is a matter which is to be inferred from the circumstances of each case. The conten­tion of the Senior Government Advocate is that under Sec. 106 illustration (.b), Evidence Act, the burden is on the accused to show that he had no intention to defraud the Railway administration undoubtedly it will be especially within the knowledge of the accused to explain as to how he was not travelling in contravention of Sec­tion 68, Indian Railways Act without a ticket or a pass and to that extent the burden is on the accused, but the prosecution is not relieved of its responsibility to establish that the accused travelled with intent to defraud the railway administration. The ques­tion of intention is one which depends upon the circum­stances 'of .each case. In the present case the courts below found that he was found attempting to enter into the compartment without a ticket or a pass. The pro­secution case further is that on demand he did not say that he had a valid pass. On the contrary, he snowed a pass which expired on the 30th June 1981. As against that the accused relied upon a pass which was valid from the 2nd July to 10th July, 1961. The pro­secution case further is that on demand he did not say that he had a valid pass. On the contrary, he snowed a pass which expired on the 30th June 1981. As against that the accused relied upon a pass which was valid from the 2nd July to 10th July, 1961. Both the courts, how­ever, found that from the circumstances it appears that the accused did not possess the said pass on the date when he travelled. The appellate court has gone to the extent of holding that tire pass was not a genuine pass. The appellate court seems to be of the opinion that as at the time when the accused was detected travelling without a pass, he dtd not give any explanation or did not indicate that he possessed a pass which was placed somewhere else or which he had lost, it trust to presum­ed in the circumstances that he was attempting to travel with intent to defraud the railway administration. I do not think that any exhaustive list can be given of the circumstances under which a person can be held to be contravening Sec. 68 with intent to defraud the railway administration. Each case will depend upon its own cir­cumstances. (6) I have read the evidence of the complainant carefully and it appears from the trend of his evidence that the demand to produce the pass or ticket if at all, was made to him subsequently and not at the time when lie forcibly entered into the compartment. In effect the complaint so far as the incident in. the compartment is concerned, is that in spite of the direction by the head ticket collector not to occupy the compartment which was reserved for other passengers, the accused rushed to enter into the compartment. The demand if at all, according to the complainant's own statement, was made at a time subsequently, when the accused is said to have been arrested in another compartment. It cannot, there­fore, be said that at the time when the altercation is alleged to have taken 'place, any demand was made to him to show his pass. The criticism of the court below. is that the pass does not bear any date below the signature of the officer concerned. It cannot, there­fore, be said that at the time when the altercation is alleged to have taken 'place, any demand was made to him to show his pass. The criticism of the court below. is that the pass does not bear any date below the signature of the officer concerned. The expired pass also does 'not bear any date on which the signature of the officer is given, nor the date of issue is to be found in the 'pass itself. On the face of it, the pass cannot be said to be a forged document. If the prosecution intended to prove that the pass was a forged one, the burden was on the prosecution, to prove it. If there was any burden under Sec. 106 of the Evidence Act on the ac­cused at all, -it was discharged by producing the pass. (7) The next criticism is that this pass is produced at the time of argument towards the close of the trial. As I have said, the accused was charged under Sees. 103 and 121 of the Indian Railways Act and Sec. 323, Indian Penal Code. It was on* the 31st July 1962" that the Magistrate amended the charge and added Section 112 Indian Penal Code and at that stage the accused was questioned. He gave his statement that he had a valid pass given to him as an emergent case by the A. T. S. Lumding by calling his dealing clerk on Sunday morning, The evidence closed and the pass was produced by the accused. As the charge under Sec. 112, Indian Railways Act itself was added later, he had no occasion! earlier to produce the pass. The main charges were under Sec. 121, Indian Railways Act and Sec. 323, Indian Penal Code. As the State has not filed any appeal against the acquittal Under Sec. 121, Indian Railways Act and Sec. 323, Indian Penal^ Code, it is not for this court in revision to go into the question of the assault or obstructing the rail­way servant in his duty. (8) I have gone through the evidence of the complainant and on the admitted facts the charge in my opinion against the accused is not established. The revision is allowed and the accused petitioner is quitted of the charge. Revision allowed.